The Census (Amendment) (Scotland) Bill (‘the Census Bill’) was introduced in the Parliament on 2 October 2018 by the Cabinet Secretary for Culture, Tourism and External Affairs, Fiona Hyslop MSP.
This blog summarises the Census Bill, and consideration at Stages 1 and 2, in time for the Stage 3 debate on Wednesday 12 June 2019. You can find out more about the different stages of the legislative process on the Parliament’s website, or in this animation:
The aim of this short Bill, as introduced, was to allow questions on sexual orientation and ‘prescribed aspects’ of gender identity to be answered on a voluntary basis.
It was proposed that the prescribed aspect for gender identity, to be set out in secondary legislation, would be ‘trans status/history’. The working definition of ‘trans’ used by the National Records of Scotland (NRS), is that it’s an umbrella term for anyone whose gender identity or gender expression does not fully correspond with the sex they were assigned with at birth.
The Bill amends the Census Act 1920 to make sure no-one will be fined for not answering these questions. All other questions in the census are mandatory. If a person refuses to answer a census question, or gives a false answer, they are liable to a fine of up to £1,000. The only exception to this is the question on religion which is also voluntary.
It was proposed that the question on gender identity – trans status/history – would follow the mandatory sex question in the census, which asks, ‘what is your sex?’ – male/female. The sex question in the 2011 Census was a binary self-identified sex question. It has always been a binary question on the census. Online guidance for the last census said that trans people could select the option for how they identify. The Scottish Government is considering whether to make the sex question for the 2021 census non-binary – male/female/other. The Census Bill does not set out the questions for the next census, including the format of the sex question, it is only about making questions on sexual orientation and gender identity voluntary.
A Census Order will be introduced in late 2019 or early 2020 which will set out the questions for Scotland’s Census 2021. The Census Order will need to be approved by the Scottish Parliament.
Stage 1 scrutiny of the Bill
The Culture, Tourism, Europe and External Affairs Committee was the lead committee (‘the Committee’) for the Bill.
The Committee received a range of evidence that supported the inclusion of these questions on a voluntary basis. It was recognised that the data would be useful for public service planning purposes, as well as helping the public sector monitor discrimination and comply with the Public Sector Equality Duty. The general principle of the Bill was described as inclusive as well as being respectful to people’s right to privacy.
The Committee supported the general principles of the Bill at Stage 1, but made recommendations including:
- amending the Bill at Stage 2 to avoid the perception that sex and gender identity have been conflated
- that the sex question should remain binary – male/female
- clarity on the approach to the sex question regarding self-identification
- that there should be further consultation with women’s groups.
Most of the recommendations refer to wider aspects of the census and its development. The Scottish Government has said it is engaging with the women’s groups that responded to the Committee’s call for evidence.
The approach to the sex question, which is not dealt with in this Bill, will be considered through the programme of question testing and engagement with different groups. NRS will continue to work closely with the Committee and keep them updated on developments with the sex question. During the Stage 1 debate the Cabinet Secretary said:
“One important point that I should highlight is that, although it looks as if in England and Wales the ONS will continue with a binary sex question, it will be self-identified, as it was in 2011. That is a genuine issue that the committee and, indeed, all of us will have to consider: if we do not have a self-identifying binary question, and if the question itself is mandatory, how will transgender people, in particular, be able to answer it? How do we give them opportunities to address the issue? A non-binary sex question would avoid the kind of male and female self-identification that you would get with a binary question, and such points will have to be considered. The sex question is, as we will remember, mandatory, but how can people answer it if options are not available? The fact is that we need people to complete the census. The important issue, particularly for transgender people, is to have the voluntary question, and I think that we all agree that that is vital”.
Stage 2 consideration
Sex and gender identity
A key concern raised at Stage 1 was that the Bill conflated sex with gender identity.
The Bill, as introduced, would have amended paragraph 1 of the Schedule to the Census Act 1920. Schedule 1 provides the list of topics that people may be required to give answers on:
- Names, sex, age.
- Occupation, profession, trade or employment.
- Nationality, birthplace, race, language.
- Place of abode and character of dwelling.
- Condition as to marriage or civil partnership, relation to head of family, issue born in marriage.
- Any other matters with respect to which it is desirable to obtain statistical information with a view to ascertaining the social or civil condition of the population.
The Bill would have added ‘(including gender identity)’ next to the term ‘sex’ in paragraph 1:
Names, sex (including gender identity), age.
The Committee received evidence that sex and gender identity are different concepts, and that they are often conflated. There were concerns that this could have unintended impacts on data collection and on the sex-based protections under the Equality Act 2010.
Over the course of Stage 1 scrutiny, there was broad agreement that the concept of ‘gender identity’ might cause confusion. The Equality Network suggested an alternative approach that would remove ‘(including gender identity)’ from paragraph 1 of the Schedule to the 1920 Act. Instead, ‘trans status’ could be added in paragraph 5. The Committee supported this approach and recommended the Scottish Government bring forward an amendment at Stage 2 to this effect.
At Stage 2, the Committee agreed to a Scottish Government amendment that placed ‘Transgender status and history’ after paragraph 5A in Schedule 1 of the 1920 Act. The Cabinet Secretary said the amendment was a response to the perceived conflation of sex and gender identity in the Bill as introduced. She also indicated that NRS had worked with the Equality Network and others on the specific text of the amendment.
The Committee also agreed to a Scottish Government amendment that puts the phrase ‘transgender status and history’ in the long title of the Bill.
Jamie Greene MSP lodged an amendment that would require the Registrar General for Scotland to issue guidance that would explain how people should answer the voluntary questions, and that they would not be liable to a penalty for not answering. This was withdrawn after the Cabinet Secretary said there are plans to have such guidance on the census questionnaire.
Impact of the Census reports
Jamie Greene lodged a further amendment that would require a report on the impact of the census to be prepared for the Scottish Parliament. This was withdrawn after the Cabinet Secretary said that the Registrar General already had an obligation to report on the census returns.
The Registrar General for Scotland wrote to Jamie Greene providing formal reassurance regarding guidance and reports on impact of the census.
If the Bill is passed, secondary legislation will be introduced later in the year, or early in 2020, setting out the questions and how the census will be run. The intention is for the census to take place on Sunday 21 March 2021 and be mainly online.
Nicki Georghiou, Senior Researcher, Equality and Human Rights